Crown Employees (Office of the Legal Aid Commission - Indemnification of Employed Solicitors) Award
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
Review of Award pursuant to Section 19 of the Industrial Relations Act 1996.
(No. IRC 700 of 2008)
Before Commissioner McLeay / 5 August 2008REVIEWED AWARD
Arrangement
PART A
Clause No.Subject Matter
1.Title
2.Definitions
3.Indemnity
4.Anti-Discrimination
5.Disputes Settling Procedure
6.Application
PART A
1. Title
This award shall be known as the Crown Employees (Office of the Legal Aid Commission - Indemnification of Employed Solicitors) Award.
2. Definitions
2.1"Association" shall mean the Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales.
2.2"Department Head" shall mean the Chief Executive Officer of the Office of the Legal Aid Commission.
2.3"Office of the Legal Aid Commission" shall mean the Office of the Legal Aid Commission of New South Wales specified in Part 1 of Schedule 1 of the Public Sector Employment and Management Act 2002.
2.4"Director of Public Employment" or "DPE" shall mean the employer for the purposes of the Public Sector Employment and Management Act 2002.
2.5"Solicitor" shall have the same meaning as in the Legal Profession Act 2004.
3. Indemnity
3.1A solicitor employed by the Office of the Legal Aid Commission shall be indemnified by the Office of the Legal Aid Commission with respect to the whole of any order made against the solicitor pursuant to section 348 of the Legal Profession Act 2004 in any matter, except where the conduct of the solicitor giving rise to the making of an order:
3.1.1constitutes "serious and wilful misconduct" as that phrase is construed under s5 of the Employees Liability Act 1991; or
3.1.2did not occur in the course of, and did not arise out of, the solicitor's employment.
4. Anti-Discrimination
4.1It is the intention of the parties bound by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent and eliminate discrimination in the workplace. This includes discrimination on the grounds of race, sex, marital status, disability, homosexuality, transgender identity, age and responsibilities as a carer.
4.2It follows that in fulfilling their obligations under the dispute resolution procedure prescribed by this award the parties have obligations to take all reasonable steps to ensure that the operation of the provisions of this award are not directly or indirectly discriminatory in their effects. It will be consistent with the fulfilment of these obligations for the parties to make application to vary any provision of the award which, by its terms or operation, has a direct or indirect discriminatory effect.
4.3Under the Anti-Discrimination Act 1977, it is unlawful to victimise an employee because the employee has made or may make or has been involved in a complaint of unlawful discrimination or harassment.
4.4Nothing in this clause is to be taken to affect:
4.4.1any conduct or act which is specifically exempted from anti-discrimination legislation;
4.4.2offering or providing junior rates of pay to persons under 21 years of age;
4.4.3any act or practice of a body established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977;
4.4.4a party to this award from pursuing matters of unlawful discrimination in any State or federal jurisdiction.
4.5This clause does not create legal rights or obligations in addition to those imposed upon the parties by the legislation referred to in this clause.
4.5.1Employers and employees may also be subject to Commonwealth anti-discrimination legislation.
4.5.2Section 56(d) of the Anti-Discrimination Act 1977 provides:
"Nothing in the Act affects any other act or practice of a body established to propagate religion that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion."
5. Dispute Settling Procedure
5.1All grievances and disputes relating to the provisions of this award shall initially be dealt with as close to the source as possible, with graduated steps for further attempts at resolution at higher levels of authority within the appropriate department, if required.
5.2A staff member is required to notify in writing their immediate manager, as to the substance of the grievance, dispute or difficulty, request a meeting to discuss the matter, and if possible, state the remedy sought.
5.3Where the grievance or dispute involves confidential or other sensitive material (including issues of harassment or discrimination under the Anti-Discrimination Act 1977) that makes it impractical for the staff member to advise their immediate manager the notification may occur to the next appropriate level of management, including where required, to the Department Head or delegate.
5.4The immediate manager, or other appropriate officer, shall convene a meeting in order to resolve the grievance, dispute or difficulty within two (2) working days, or as soon as practicable, of the matter being brought to attention.
5.5If the matter remains unresolved with the immediate manager, the staff member may request to meet the appropriate person at the next level of management in order to resolve the matter. This manager shall respond within two (2) working days, or as soon as practicable. The staff member may pursue the sequence of reference to successive levels of management until the matter is referred to the Department Head.
5.6The Department Head may refer the matter to the DPE for consideration.
5.7If the matter remains unresolved, the Department Head shall provide a written response to the staff member and any other party involved in the grievance, dispute or difficulty, concerning action to be taken, or the reason for not taking action, in relation to the matter.
5.8A staff member, at any stage, may request to be represented by the Association.
5.9The staff member or the Association on their behalf, or the Department Head may refer the matter to the New South Wales Industrial Relations Commission if the matter is unresolved following the use of these procedures.
5.10The staff member, Association, department and DPE shall agree to be bound by any order or determination by the New South Wales Industrial Relations Commission in relation to the dispute.
5.11Whilst the procedures outlined in subclauses 5.1 to 5.10 of this clause are being followed, normal work undertaken prior to notification of the dispute or difficulty shall continue unless otherwise agreed between the parties, or, in the case involving occupational health and safety, if practicable, normal work shall proceed in a manner which avoids any risk to the health and safety of any staff member or member of the public.
6. Application
6.1This award shall apply to all solicitors employed by the Office of the Legal Aid Commission of New South Wales other than a solicitor who is a chief executive officer or senior executive officer for the purposes of Part 3.1 of the Public Sector Employment and Management Act 2002.
6.2This award is made following a review under section 19 of the Industrial Relations Act 1996 and rescinds and replaces the Legal Aid Commission (Indemnification of Employed Solicitors) Award published 22 April 2005 (350 I.G. 409).
6.3The changes made to the award pursuant to the Award Review pursuant to section 19(6) of the Industrial Relations Act 1996 and Principle 26 of the Principles for Review of Awards made by the Industrial Relations Commission of New South Wales on 28 April 1999 (310 I.G. 359) take effect on and from 5 August 2008.
6.4The award remains in force until varied or rescinded, the period for which it was made having already expired.
J. McLEAY, Commissioner
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Printed by the authority of the Industrial Registrar.
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